Wednesday, July 7, 2010

That's what Keith Hennessey says normally takes place before a recess appointment, in claiming foul on Barack Obama for his recess appointment of Don Berwick, which took place even before the appropriate Senate committee even held a hearing on Berwick.

Hennessey is a good source of information on Congressional procedure, but in his post he makes several errors, showing that his knowledge of the Senate and confirmation is a bit on the dated side. I'll start with "an actual filibuster." What is that? Well, in the old days, it was easy to spot -- it involved people who looked suspiciously like Jimmy Stewart, or at least pretending that they did, reading recipes or some such filler on the floor of the Senate. But that's not what a filibuster looks like any more! In fact, a "filibuster" doesn't look like anything. On confirmations, it takes the form of objecting to unanimous consent to bring the nomination to a vote...but that's exactly what a single-Senator hold looks like, and moreover unless the majority wants to make a point, they don't bother trying. Or, we could say that a filibuster consists of voting against cloture, or forcing a cloture vote, or, as in the most common form, making it known that the minority will force a cloture vote. Any and all of those, in the current Senate, count as an "actual filibuster."

But, as I've discussed with regard to Elena Kagan, that's not all. Republicans in the current Senate have made it clear that they are forcing cloture votes on every nominee -- or, at least, threatening to do so. Hennessey says of nominees that "If you’re controversial, the question of your nomination can be filibustered." But that's precisely where he's wrong about the current Senate, in which many nominations have been stalled for weeks, or even for months, only to eventually yield unanimous or close to unanimous confirmation votes.

Once upon a time, filibusters were reserved for truly weighty issues. Then, during the Bill Clinton and George W. Bush administrations, filibusters were used on any controversial measure or appointee. It's only in the last two years, during the Obama presidency and this Senate, that a real 60 vote Senate, in which nothing at all could pass without a supermajority, was institutionalized.

Of course, presidents have fought back, using whatever weapons they had. Bush fought back by using recess appointments at an unusual pace...until Democrats took over the majority in Congress, and stopped having recesses. Now, Barack Obama has decided that there's no point for him to wait around until the filibuster (slowly) takes shape. But, as I've said with Kagan, it certainly is a filibuster: everything is filibustered in the current Senate, successfully or not. Hennessey talks about bypassing "the normal Senate confirmation process," but then talks about a possibility of a filibuster. In the current Senate, filibusters are not a possibility; they are certain, on everything. Given that, it's probably the right move to make for the president to use his power for recess appointments at a time of his choosing, to maximize his own interests (including, of course, his interest in getting the administration fully staffed). The real question is whether Republicans are willing to strike a deal that would free up more nominees. In fact, after Obama started making recess appointments earlier this year, Republicans appear to have relented on non-controversial executive branch nominees, and most of them have been cleared from the Senate calendar and confirmed. Obama is certainly playing hardball here; the question is whether Republicans would be willing to cut deals to get more nominees confirmed (that is, to allow "up or down" votes) without recess appointments, or if they would prefer to whine about process.

The best Republican defense of filibustering everything is: the rules are the rules. If the rules say you can filibuster whenever you want, then there's no reason not to filibuster every single thing. And that's fine. Likewise, the rules also say the administration can appoint officials to the executive branch without Congressional approval during a recess.

If you're going to push the rules as far as they can go, you can hardly complain when the other party does the same thing.

The LA Times had a great piece on work that Common Cause is doing on the filibuster, namely challenging its constitutionality. As it stands now, it takes 67 votes to end a filibuster to a proposed rules change. The Constitution itself says that each House gets to decide its own internal rules and proceedings, but because the Senate is a "continuing body," this 67-vote rule essentially deprives freshman Senators and the rest of the body the opportunity to revise its rules every two years. Check it out: http://opinion.latimes.com/opinionla/2010/06/common-cause-offers-a-case-against-the-filibuster-rule.html

I don't think that Common Cause has any chance to win in the courts -- the courts are very likely to consider it a political question beyond their jurisdiction, and rightly so. Moreover, on the merits, I think it's a very, very weak case. I think the filibuster is fairly clearly constitutional.

I also think, as I've said before, that the Senate should get rid of it for executive branch nominations.

I agree with you and Chait that the Republican's aggressive use of the filibuster largely excuses Obama's aggressive use of his recess appointment powers. But, in a functioning representative democracy, the most authoritative diagnosis of, and the principal remedy for, excessive partisanship is delivered by the voters in the next election. (Remember what they did to the Republicans in 1998 for impeaching Clinton.) So it matters that the Republicans want to make a spectacle of their opposition to Berwick while Democrats want to keep their support for his appointment under the radar.

The courts may try to duck the case on political question grounds, but we've seen that Art I, Section V doesn't let Congress adopt any rule that it wants. Especially if the rule violates the Constitution. Rule XXII denies states equal representation in the Senate and it very clearly runs afoul of longstanding Supreme Court jurisprudence that one legislature cannot "bind" a future legislature. That is precisely what this rule does. By requiring a 2/3 vote to end a filibuster on a rules change, it deprives the Senate of adopting its own rules, which is its constitutional right.

"We've seen"? I'm not aware of any examples of the Court contesting Congress's internal rules. Am I missing something?

As for binding a future legislature, the current rules don't actually do that, in my opinion, certainly not in any way that the Court would (or should) attempt to prevent. It's not even clear that the 2/3 requirement would actually be very effective against a determined majority within a Congress that really wanted to change the rules, as seen in the Gang of 14 episode.